Unions are on the march

Democracy is rule by persuasion, but the unpersuasive often try
to coerce the unpersuaded. Recent days have provided two
illustrations of this tendency, both of them pertaining to labor
unions, whose decades of declining membership testify to their
waning power to persuade workers that unions add more value to
workers' lives than they subtract.

On June 14, the Supreme Court ruled 9-0 against the Washington
Education Association (WEA), Washington state's teachers union,
which was claiming a perverse government-conferred entitlement.
Five days later, organized labor and its political allies,
including she who would be president, marched in Washington, D.C.
They were asking Congress to deny to workers, whom unions are
trying to organize, the right to a secret ballot. Both cases also
illustrate the increasingly casual resort to abridgements of the
rights of free speech and association.

Many states, including Washington, allow "agency shop"
agreements whereby unions can levy fees on public employees who
choose not to join a union but are represented by the union in
collective bargaining. Thirty years ago the Supreme Court held that
nonmembers cannot be forced to pay the portion of union fees that
are used not for collective bargaining but for political
activities. Often states have "opt out" provisions, whereby
nonmembers are required to request that the political portion of
their fees be refunded.

About 3,500 of Washington state's approximately 70,000 teachers
choose not to join the WEA, which made opting out a tedious chore.
To get their refund -- about 25 percent of their fees -- the
nonmembers had to follow procedures detailed in six pages of arcane
instructions.

In 1992, however, Washington voters approved by referendum an
"opt in" rule. Unions were forbidden to use nonmembers' fees "to
influence an election or to operate a political committee, unless
affirmatively authorized by the individual."

Amazingly, the WEA persuaded the state Supreme Court that
requiring it to ask permission before using other people's money --
for political speech that those people do not want to finance --
was an unconstitutional burden on the WEA's right of free speech.
This novel, to be polite, theory did not persuade even one of the
nine often fractious justices of the U.S. Supreme Court.

Speaking for the court, Justice Antonin Scalia noted that when
government allows agency-shop arrangements, it creates a remarkable
entitlement: It gives a private entity, a public employees union,
"the power, in essence, to tax government employees." The WEA's
complaint -- a notably brazen example of the entitlement mentality
-- was against the supposedly burdensome "opt in" condition placed
on its exercise of that power. With understandable asperity, Scalia
said: "The notion that this modest limitation upon an extraordinary
benefit violates the First Amendment is, to say the least,
counterintuitive."

The WEA's whiney audacity was not more offensive than the aim
organized labor tried to advance with Tuesday's march and rally in
the nation's capital. Unions were demonstrating in support of
legislation with the Orwellian title "Employee Free Choice Act." It
would deny employees the choice of a secret ballot when voting on
unionization of their workplace. Instead, union organizers would
use the "card check" system, which allows them to pick the voters
they want: Once a majority of workers -- exposed one at a time to
face-to-face pressure from union organizers -- sign a union card,
the union is automatically certified as the bargaining agent for
all the workers.

The Supreme Court has said that the card-check system is
"admittedly inferior to the election process." Hillary Clinton, who
has given herself a makeover as a moderate, and who was elected by
secret ballots, and who hopes that next year voters will use their
secret ballots to give to her the power to nominate Supreme Court
justices, nevertheless toes labor's line when she advocates
abolishing workers' right to a secret ballot. Abolition, she says,
will "create a fair and level playing field between workers and
employers."

When in March the House passed card-check legislation for
unpersuasive unions, a principal sponsor was George Miller,
D-Calif., who in 2001 wrote, with 15 colleagues, to Mexican
officials, on behalf of the rights of Mexican workers, insisting
"that the secret ballot is absolutely necessary in order to ensure
that workers are not intimidated into voting for a union they might
not otherwise choose." Now, that is persuasive.